Re: Application of Penelope Champion

Penelope Champion applied to the Supreme Court of New South Wales to have funds paid out of court. The property in question was held by tenants in common, and was sold by a mortgagee in possession. The proceeds of the sale were deposited into court. Champion, one of the tenants in common, applied to have half of the funds paid out to her, and to have the other half held in court pending the location of the other tenant in common. The legal issues before the court were whether Champion was entitled to payment out of court under the relevant rules and whether the court should hold the balance of the funds pending the other tenant in common being located.

The court found that Champion was entitled to one half of the funds, being $51,958.68, as she was one of two tenants in common of the property. The court held that the other tenant in common could make a claim against the funds in court, and that the balance of the funds should be held in court pending that claim being determined. The court noted that the Uniform Civil Procedure Rules 2005, rule 55.11 permitted the payment out of court of funds where there was no dispute as to the entitlement of the applicant. The court also noted that the Trustee Act 1925, section 95 provided for the payment into court of funds where there was a dispute as to the entitlement of the applicant. The court found that there was no dispute as to Champion's entitlement to one half of the funds, and that the balance of the funds should be held in court pending the other tenant in common being located.

The court ordered that $51,958.68 be paid to Champion out of court, and that the balance of the funds, being $51,958.65, be held in court pending the other tenant in common being located. The court also ordered that the other tenant in common could make a claim against the funds in court.